On May 21,2015, the USCIS issued new policy guidance for H-1b employers. This guidance was issued following the April 9th Simeio Solutions precedent decision from the AAO which determined that a change in employment outside the area of intended employment was a material change and required the filing of an amended petition. This ruling was a major departure from prior USCIS policy and practice. The May 21st USCIS memo was designed to explain how that new policy will be implemented. The memo makes the following points:
1. An amended petition must be filed BEFORE an H-1b employee can be moved to a new worksite outside the original area of intended employment.
2. A deadline of Aug 19, 2015 has been established for all employers to file amended petitions to reflect the worksite locations of any H-1b worker who has been moved from their original petition location.
3. If an amended petition is pending and a subsequent move is made, a 2nd amended petition can be made and an employee moved. There is no requirement to obtain a decision in the 1st case before filing the 2nd case.

The Simeio Solutions decision has a huge impact on employers in the staffing industry and now this memo requires that an amended petition must be filed before moving an employee, the impact grows. Further, with the memo making it clear that the new policy will be applied retroactively to existing H-1b workers, albeit, with a 90 day grace period, the negative consequences to U.S. employers will be even larger and, the benefit to the coffers of the USCIS will be as well. With an economic impact to U.S. employers easily exceeding $100 million annually, it is unclear how the USCIS decision makers believe that this change in policy is not in violation of the Administrative Procedures Act and should not have gone through the formal rulemaking procedure. Whether any company or trade association challenges this new policy on APA grounds is yet to be seen.

As a practical matter, H-1b employers should take the following actions:
1. Confirm the current worksite locations of all H-1b employees and determine if that worksite has changed from the original petition and, if necessary, take steps to file an amended petition prior to Aug 19, 2015.
2. Communicate to sales and deployment teams that any change in worksite location will take at least 10 days and there is an economic cost to said move that must be considered.

USCIS announced today that it will temporarily suspend the premium processing service for all H-1b extension of stay petitions filed on May 26, 2015 or after. This suspension will remain in effect until July 27, 2015. During this period of time, petitioners will not be able to request premium processing for H-1b extensions of stay. All premium processing extension of stay petitions that are filed before May 26, 2015 will be adjudicated through the premium processing service. Premium processing will also continue to be available to all other H-1b petitions, including those that are subject to the cap, those requesting consular processing, and those requesting a change of status for physicians who have received a J-1 waiver through the Conrad 30 program. USCIS announced that it is suspending the premium processing service for H-1b extension of stay petitions so that it can implement the new federal regulations that will allow certain non-immigrants on H-4 to receive employment authorization.

Immigration and Customs Enforcement recently released an alert that foreign students are being targeted by con artists in the Chicago area. Several foreign students in this area have received phone calls from individuals who represent that they are employees of the Student and Exchange Visitor Program. These scammers are telling students that they must pay $4000.00 to avoid deportation. The con artists are also using the “location service” on each student’s cell phone to determine the student’s location and to threaten them with pursuit if money is not received. The Chicago police department is currently investigating these crimes. The Hammond Law Group reminds foreign nationals that they should contact their immigration attorney or local law enforcement if they ever receive a phone call from a person claiming to be a government agent who demands money.

As we posted earlier, a lawsuit was filed in Federal court (Save Jobs USA v. U.S. Dep’t of Homeland Security) seeking to halt the rollout of the new rule which would allow H4 spouses to receive an EAD. Save Jobs has argued that there isn’t any statutory authorization for the new H-4 EAD rule and that Save Job’s members will be injured by this new rule because it will expand the number of nonimmigrant workers that its members will have to compete against. On May 12, DHS asked that the suit be dismissed for several reasons. The main contention of DHS was that “Indeed, they fail to submit a scintilla of documentary evidence supporting their claim that they have been ‘injured’ for purposes of Article III standing.”

The final H-4 rule is set to take effect May 26. However, no guidance has been issued on the procedures for the new rule and this lawsuit may be one of the reasons nothing final has been released yet. We will post more developments as they happen.

Last week, Informationweek.com ran an interesting piece on the H-1b visa and the cap lottery. I would’ve added a sobbing CIO as the last slide but, aside from that, it helps to put the numbers into perspective. BTW We received some more cap receipts in today and no rejected filings yet so there remains hope but, hope is fading quickly and we expect to start receiving rejected filings this week.

The Information Technology and Innovation Foundation (ITIF) recently published an interesting article addressing this issue and offered arguments that you can use the next time someone shouts at you and says “don’t you know, we got plenty of high skilled US workers without jobs and we don’t need no more foreign workers”

The DOL has released updated PERM stats which reveal some interesting tidbits. The number of PERM applications received this year over the same time period in FY 2014 is up over 25%. Of cases where a decision has been reached, less than 10% have been denied. Over 30% of cases are currently in audit review and almost 10% of cases are pending an appeal. Although it seems like everyone claims to have been filed under EB2, almost 50% of cases were filed under EB3 standards.